BAKER, SR. v. City of Elmira

• Decision Date: 27 April 2000
• Parties: JAMES A. BAKER, SR., Appellant,<BR>v.<BR>CITY OF ELMIRA, Respondent.
• Court: New York Supreme Court — Appellate Division

271 A.D.2d 906

707 N.Y.S.2d 513

JAMES A. BAKER, SR., Appellant,

v.CITY OF ELMIRA, Respondent.

Peters, J.

Decided April 27, 2000.

Crew III, J. P., Spain, Graffeo and Mugglin, JJ., concur.

Peters, J.

In March 1991, plaintiff, employed by defendant City of Elmira as a firefighter since 1974, took the civil service promotional examination for Fire Lieutenant and placed fifth on the eligible list which expired in June 1993. Before its expiration, the first four firefighters were promoted in the order of their civil service scores. By memorandum dated March 18, 1993, Donald Harrison, defendant's Fire Chief, informed W. Gregg LaMar, defendant's City Manager, of the retirement of the Deputy Chief and other job vacancies. Since one of those vacancies was for Fire Lieutenant, he noted that plaintiff was next on the list for the position. The memo concluded with a request that the indicated promotions be made and presented to the City Council as soon as possible. Second and third on the list were Eugene Ottaviani and Patrick Shaw, respectively. All three candidates possessed identical examination and seniority scores.

By memorandum dated March 25, 1993 from Harrison, plaintiff was informed that "[i]n anticipation of promotions", he was to be transferred to a different shift as Acting Lieutenant. Despite the aforementioned recommendation, on June 14, 1993, LaMar selected Ottaviani for the position, a decision adopted by the Democratic majority of the City Council in a 4-3 vote. Quoting LaMar, Mayor James E. Hare and various Council Members, the local newspapers reported that the appointment was political retribution for plaintiff's former service as the Republican City Chairperson from 1979 to 1982.

Approximately three years later, the instant action was commenced alleging violations of Labor Law § 201-d and Civil Service Law § 61. Following discovery, defendant moved for summary judgment contending, inter alia, that LaMar appointed Ottaviani over plaintiff pursuant to his appointing authority, exercised in accordance with the law. Defendant proffered the civil service promotion list demonstrating that plaintiff and the next two candidates had identical test scores and seniority ratings resulting in a three-way tie. Defendant further included LaMar's detailed affidavit in which he admits that although he did receive "unsolicited input" on specific promotions from individual members of the City Council, he had no recollection of political pressure from the Mayor, City Council or any individual members with respect to his decision to promote Ottaviani over plaintiff. Finally, the record included the governing statute from which the appointing authority emanated.

In opposition, plaintiff submitted, inter alia, his own affidavit which referred to several conversations that he had with Council Members in which they indicated that he would not get the promotion because of his prior political activities. Plaintiff further proffered two affidavits of Richard T. Micelotta, a former Council Member, one detailing his efforts to convince Hare to promote plaintiff and a second describing an executive session of the City Council in which Hare admitted that plaintiff was not being promoted because of his political affiliation. He further offered the affidavits of two other Council Members who stated that the decision was politically motivated and that the decision was made by Hare rather than LaMar. Supreme Court, without explanation, granted defendant's motion, prompting this appeal. We reverse.

With respect to plaintiff's submission of additional materials on appeal, we agree with defendant that we will not consider matters outside the record (see, Ughetta v Barile, 210 AD2d 562, lv denied 85 NY2d 805). Reviewing defendant's proffer to Supreme Court, we note that "it was incumbent upon [defendant] to come forward with admissible evidence showing that plaintiff['s] political affiliations and activities did not play a substantial part in its decision" (McManus v Grippen, 244 AD2d 632, 633). "[A] person successfully passing a competitive Civil Service examination does not acquire any `legally protectable interest' in an appointment to the position for which the examination was given * * * nor `thereby gain a vested right to appointment to the position'" (Matter of Andriola v Ortiz, 82 NY2d 320, 324, cert denied 511 US 1031 [emphasis added] [citations omitted], quoting Hurley v Board of Educ., 270 NY 275, 279). We find that here, in the context of either the Civil Service Law or the Labor Law, defendant has made a prima facie showing of the propriety of the promotion, but such showing offered no explanation as to why LaMar chose Ottaviani over the other candidates, even though they were all equally qualified.

Plaintiff, faced with the burden to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact" (Zuckerman v City of New York, 49 NY2d 557, 562) or demonstrate an acceptable excuse for the failure to do so (id.), could meet this burden by propounding evidence indicating that the employment decision was based upon his prior political activities (see, Matter of Richardson v City of Saratoga Springs, 246 AD2d 900, 902). In that context, plaintiff submitted, inter alia, the...